Date: 20070716
Docket: T-416-07
Citation: 2007 FC
752
Ottawa, Ontario,
July 16, 2007
PRESENT: The Honourable Madam Justice Snider
BETWEEN:
CANWEST MEDIAWORKS INC.
Applicant
and
THE MINISTER OF HEALTH and
THE ATTORNEY GENERAL OF CANADA
Respondents
REASONS FOR ORDER AND ORDER
[1] The Minister of Health and the Attorney
General of Canada are the Respondents in an Application for judicial review
brought by CanWest MediaWorks Inc. (CanWest). In this motion, the Respondents
seek to have the Application dismissed. Alternatively, they ask the Court to
stay the Application until the final outcome of an action brought by CanWest in
the Ontario Superior Court of Justice (Court File Number 05-CV-303001PD2).
Background
[2] CanWest, through its affiliates, has an
interest in many forms of media, including print, television and online
publications. CanWest relies on advertising revenues from these various media.
In Canada, that advertising is subject to certain limitations imposed by the
provisions of the Food and Drugs Act, R.S.C. 1985, c. F-27 (FDA) and the
Food and Drug Regulations, C.R.C., c. 870 (FDR). Under these
limitations, all persons are prohibited from what is known as
“direct-to-consumer advertising” (DTCA) of prescription drugs. CanWest does not
believe that these limitations are consistent with s. 2(b) of the Canadian
Charter of Rights and Freedoms. Accordingly, on December 23, 2005, it
commenced an action in the Ontario Superior Court of Justice seeking to have
the relevant provisions of the FDA and FDR declared to be contrary to the
Charter (the CanWest Charter challenge). That action has yet to be heard.
[3] During this period while it awaits final
resolution of its Charter challenge, CanWest is concerned about magazines
imported to Canada from the
United States, U.S. television
commercials that have appeared on Canadian television and internet publications
that are accessed by Canadians. These forms of U.S. media allegedly contain DTCA. On March 13, 2007, CanWest filed an
Application for judicial review in this Court seeking an order of mandamus
requiring that the Respondents investigate and prosecute breaches of the DTCA
prohibitions by American entities.
Issues
[4] The motion raises the following issues:
1. Should the Application for judicial review be dismissed on the basis
that:
a. CanWest
does not have standing to bring the application?
b. the preconditions for mandamus cannot be met?
2.
In the alternative, should the Application for judicial
review be stayed until the disposition of
the CanWest Charter challenge in the Ontario
Superior Court of Justice?
[5] For the reasons that follow, I have determined that CanWest has no
standing to bring the Application for judicial review. The lack of standing is
determinative. Therefore, I do not need to consider the other issues and will
grant the Respondent’s motion to dismiss.
Statutory Framework
[6] The relevant provisions which CanWest wishes to have enforced in
this Application (and seeks to quash in the proceedings before the Ontario
Superior Court of Justice) are s. 3(1) of the FDA and s.
C.01.044 of the FDR. Section 3(1) of the FDA states as follows:
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3. (1) No person shall advertise
any food, drug, cosmetic or device to the general public as a treatment,
preventative or cure for any of the diseases, disorders or abnormal physical
states referred to in Schedule A.
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3. (1) Il est
interdit de faire, auprès du grand public, la publicité d’un aliment, d’une
drogue, d’un cosmétique ou d’un instrument à titre de traitement ou de mesure
préventive d’une maladie, d’un désordre ou d’un état physique anormal
énumérés à l’annexe A ou à titre de moyen de guérison.
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[7] Section
C.01.044 of the FDR provides that:
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(1) Where a person advertises
to the general public a Schedule F Drug, the person shall not make any
representation other than with respect to the brand name, proper name, common
name, price and quantity of the drug.
(2) Subsection (1) does not
apply where
(a) the drug is listed
in Part II of
Schedule F; and
(b) the drug is
(i) in a form not
suitable for human use, or
(ii) labelled in the manner
prescribed by paragraph C.01.046(b).
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(1) Quiconque fait la publicité auprès du grand public
d'une drogue mentionnée à l'annexe F doit ne faire porter la publicité que
sur la marque nominative, le nom propre, le nom usuel, le prix et la quantité
de la drogue.
(2) Le
paragraphe (1) ne s'applique pas lorsque :
a) la
drogue est mentionnée à la partie
II de l'annexe F;
b) la
drogue est :
(i) soit
présentée sous une forme
impropre à
l'usage humain,
(ii) soit
étiquetée de la façon prévue
à l'alinéa
C.01.046b).
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[8] Simply put, the regulatory scheme relevant to this Application
prohibits certain forms of advertising of prescription drugs.
[9] Under the statutory scheme, the Respondents have the overall
authority to investigate and prosecute breaches of the legislation. The
assertion of the Applicant is that, with respect to certain U.S. entities whose publications are
imported into Canada or whose broadcasts
are seen by Canadians or whose internet sites are viewed by Canadians, there is
a breach of the DTCA prohibition.
Analysis
General Principles
[10] It is well-established that the Federal Court may dismiss a
judicial review application on a preliminary motion. However, the jurisdiction
is exceptional and should only be exercised in those cases where the
application is so clearly improper as to be bereft of any possibility of
success (David Bull Laboratories (Canada) Inc. v. Pharmacia Inc., [1995]
1 F.C. 588, 176 N.R. 48 (F.C.A.)). Of relevance to this motion, two exceptions
to the general rule against dismissal of judicial review applications have
been: (a) where the applicant has no standing to bring the application (Apotex
Inc. v. Canada (Governor in Council), 2007 FC 232 at para. 33, 155 A.C.W.S.
(3d) 1080, [2007] F.C.J. No. 312 (FC) (QL)); and (b) where the filed material
did not establish the prerequisites for an order of mandamus (Rocky
Mountain Ecosystem Coalition v. Canada (National Energy Board) (1999), 174
F.T.R. 17, [1999] F.C.J. No. 1223 at para. 42 (F.C.T.D.) (QL)).
Issue #1(a): Does the Applicant have standing to
bring this Application for judicial review?
[11] On judicial review, the jurisdiction of the Federal Court extends to
review the actions or decisions of a “federal board, commission or other
tribunal” (s. 18, Federal Courts Act, R.S.C. 1985, c. F-7). In
this case, there is no dispute that the alleged action (or, more accurately,
the failure to act) of the Respondents in choosing not to enforce the
provisions of the FDA is an action of a body included in s. 18 of the Federal
Courts Act. This does not mean that any person may bring an application for
judicial review against any decision of any “federal board, commission or other
tribunal”. An application may be made “by anyone directly affected by the
matter in respect of which relief is sought” (Federal Courts Act, s.
18.1(1)). Thus, the person must have some link with the action or decision –
generally referred to as “standing”. If an applicant cannot establish a link,
he cannot bring the application.
[12] An applicant for judicial review may have standing in one of two
ways. First, an applicant may have a direct interest in the matter under
review. Secondly, the Courts have recognized that, in appropriate
circumstances, a party should be granted “public interest standing” to
challenge actions of a “federal board, commission or other tribunal” (Borowski
v. Canada (Attorney General), [1989] 1 S.C.R. 342, 57 D.L.R. (4th)
231, [1989] 3 W.W.R. 97). I will examine each of these.
(a)
Direct Interest
[13] It is generally accepted in the jurisprudence that, for an applicant
to be considered "directly affected", the matter at issue must be one
which adversely affects its legal rights, impose legal obligations on it, or
prejudicially affect it directly (see, for example, Rothmans of Pall Mall
Canada Ltd. v. Canada (Minister of National Revenue), [1976] 2 F.C. 500 (F.C.A.),
67 D.L.R. (3d) 505; Kwicksutaineuk/Ah-kwa-mish Tribes v. Canada (Minister of
Fisheries and Oceans), 2003 FCT 30, [2003] F.C.J. No. 98 at para. 8
(F.C.T.D.) (QL), aff'g on other grounds 2003 FCA 484, [2003] F.C.J. No. 1893 (F.C.A.)
(QL), leave to appeal to S.C.C. refused, [2004] S.C.C.A. No. 55); Apotex,
above, at para. 20).
[14] In my
view, CanWest cannot establish any direct interest in the outcome of the Application
for judicial review. I begin with the orders sought by CanWest in the
Application for judicial review. CanWest has applied for:
1.
An order in the nature of mandamus, that
the Respondents investigate and prosecute breaches of
the DTCA prohibitions by U.S. media; and
2. A declaration that the Respondents are required to
investigate and prosecute breaches of the
DTCA.
[15] In its simplest terms, the only parties directly affected by
the order of mandamus or declaration sought by CanWest would be those U.S. entities that have been identified by
CanWest as allegedly being in breach of the DTCA prohibition and the
Respondents.
[16] Indeed, on the record filed for the Application, CanWest has not
even established a commercial impact of a successful judicial review. In
argument before me, counsel for CanWest attempted to argue that a positive
ruling from this Court on the Application would have positive financial implications
for CanWest. It argues that, if U.S. entities are prevented from publishing
DTCA in U.S. media that now
finds its way into Canada, pharmaceutical companies who wish to advertise in Canada would then choose to advertise, in
legally permissible ways, in CanWest’s media enterprises. In other words, they
submit, the playing field would be levelled. The problem with this assertion is
that it is based on pure speculation. There is nothing before me to indicate
that CanWest would be the beneficiary of additional advertising revenue if
investigations and prosecutions against U.S. media were pursued.
[17] Even if I were to assume that CanWest has a commercial interest in
the outcome of the Application, I am still not persuaded that this would be
enough to make it a party “directly affected”. A commercial interest in the
issues in a judicial review application, in and of itself, is not a sufficient
basis for standing (Rothmans of Pall Mall Canada Ltd. v. Canada (Minister of
National Revenue), [1976] 2 F.C. 500, 67 D.L.R. (3d) 505 (F.C.A.); Aventis
Pharma Inc. v. Minister of Health et al, 2005 FC 1396, 45 C.P.R. (4th)
6 at para. 19, 143 A.C.W.S. (3d) 350).
(b)
Public Interest Standing
[18] In cases where no direct standing can be established, the Courts
have allowed, as a matter of judicial discretion, intervention by parties
asserting a public interest. One of the clearest expressions of the policy
reasons for when and where to allow public interest standing was that of
Justice Cory in Canadian Council of Churches v. Canada (Minister of
Employment and Immigration), [1992] 1 S.C.R. 236 at 252 - 253, where he
stated:
The increasing recognition of the
importance of public rights in our society confirms the need to extend the
right to standing from the private law tradition which limited party status to
those who possessed a private interest. In addition some extension of standing
beyond the traditional parties accords with the provisions of the Constitution
Act, 1982. However, I would stress that the recognition of the need to grant
public interest standing in some circumstances does not amount to a blanket
approval to grant standing to all who wish to litigate an issue. It is
essential that a balance be struck between ensuring access to the courts and
preserving judicial resources. It would be disastrous if the courts were
allowed to become hopelessly overburdened as a result of the unnecessary
proliferation of marginal or redundant suits brought by a well-meaning
organizations pursuing their own particular cases certain in the knowledge that
their cause is all important. It would be detrimental, if not devastating, to
our system of justice and unfair to private litigants.
The whole purpose of granting
status is to prevent the immunization of legislation or public acts from any
challenge. The granting of public interest standing is not required when, on a
balance of probabilities, it can be shown that the measure will be subject to
attack by a private litigant. The principles for granting public standing set
forth by this Court need not and should not be expanded. The [page253] decision
whether to grant status is a discretionary one with all that that designation
implies. Thus undeserving applications may be refused. Nonetheless, when
exercising the discretion the applicable principles should be interpreted in a
liberal and generous manner.
[19] Acknowledging these principles, Justice Cory in Canadian Council
of Churches applied a tri-partite test, which has been followed in other
case (see, for example, Hartling v. Nova Scotia (Attorney General), 2006
NSSC 225 at para. 33; Fraser v. Canada (Attorney General), [2005] O.J.
No. 5580 at para. 51 (Ont. Sup. Ct. Jus.) (QL); Peace Hills Trust Co. v.
Saulteaux First Nation, 2005 FC 1364 at para. 77) and requires the consideration
of three aspects:
1.
Is there a serious issue to be raised;
2.
Does the plaintiff (or applicant in the case of
a judicial review) have a genuine interest in the
outcome of the litigation; and
3. Is there another reasonable and effective way to
bring the issue before the Court?
[20] I will assume, without deciding, that there is a serious issue
raised by the Application as to whether the Respondents are under a duty to
investigate and prosecute U.S.
entities as described in CanWest’s application.
[21] The next aspect of “genuine interest” is more problematic for
CanWest. In Canadian Council of Churches, Justice Cory accepted the
genuine interest of the Council which, in his words, “demonstrated a real and
continuing interest in the problems of the refugees and immigrants”. It appears
to me that an examination of this aspect of the test requires me to review the
nature of CanWest’s interest in this Application. In other words, does CanWest
have a “real and continuing interest” in the maintenance and enforcement of the
DTCA legislative scheme? In my view, the answer to this question is far from
clear. The instigation of a proceeding in another Court to strike down the
impugned provisions seems to be a strong statement that the continuing interest
of CanWest is not to maintain the existing legislation but to remove barriers
to its participation in the DTCA market.
[22] CanWest argues that the unfairness of the present situation, where
it is forced to comply with the statutory scheme while U.S. entities are not, gives it a genuine interest in the outcome of the
Application for judicial review. While CanWest may have a “real” interest at
this time in trying to create a level playing field, I do not see this as
sufficient, on these facts, to grant CanWest standing.
[23] Finally, CanWest argues that there is no reasonable and effective
manner for the issue of the Respondents’ failure to enforce its own laws to
come to Court. If CanWest does not bring this application, it asserts, who
will? CanWest contends that this is a situation, as described in Distribution
Canada Inc. v. Minister of National Revenue, [1993] 2 F.C. 26, 99
D.L.R. (4th) 440 at 449 (F.C.A.), where the matter raised by CanWest
is one of “strong public interest” and “there may be no other way such an issue
could be brought to the attention of the court” and, as such, standing should
be granted to CanWest. I do not agree.
[24] The fact is that a coalition of a number of interested parties has
already successfully sought intervener status in CanWest’s Charter challenge in
opposition to CanWest. It seems evident that there are individuals and groups
in Canada who are supportive of
the DTCA prohibitions and who may have public interest standing to bring an
application for judicial review in this Court to determine the issues (assuming
that there are reviewable issues). There may be many reasons why there has been
no pursuit of an order of mandamus in our Court by any other party.
Failure, to date, by other parties (with, for example, no commercial interest
or with broader health concerns) to seek mandamus does not elevate
CanWest’s interest to one of “public interest”.
[25] In sum, I am not persuaded that CanWest can meet any one of the
aspects for public interest standing.
[26] However, even assuming that there are some arguments that CanWest
meets the three criteria, the granting of public interest standing is a matter
of judicial discretion. As stated by Justice Cory in Canadian Council of
Churches, above at 252-253. “The decision whether to grant status is
a discretionary one with all that that designation implies. Thus undeserving
applications may be refused.” In this case, there are strong
reasons why I should not exercise my discretion. This is particularly so where
the very party bringing the Application for judicial review is the same party
that commenced the Charter challenge in a different Court. It is also difficult
to understand how an interest in levelling the playing field is anything more
than a private concern.
[27] Further, resolution of the CanWest Charter challenge would greatly
enhance the ability of this Court to deal with the issues underlying the
Application for judicial review. That is, knowing that the impugned provisions
are not in violation of the Charter (if that is the outcome of the Charter
challenge) would provide the Court with a proper legal foundation to assess submissions
in an Application for judicial review. Such a conclusion could also provide
other stakeholders (such as concerned individuals or public interest groups),
who do not hold a possible commercial interest in the outcome, with an informed
opportunity to seek mandamus through an Application for judicial review
in the Federal Court. On the other hand, a finding by the Ontario Superior
Court of Justice that the impugned provisions are contrary to the Charter could
obviate the need for any judicial review. Although this argument could support
an application for a stay of this Application, it also, in my view, goes to the
question of standing and whether judicial discretion should be exercised. On
the record before me, CanWest’s standing and possible interest in the outcome
of the judicial review is not likely to change as a result of its Charter
challenge. Accordingly, rather than stay the Application for judicial review,
the better option is to dismiss this Application for judicial review.
Conclusion
[28] In conclusion, I am not persuaded that CanWest has the requisite
standing to bring this Application for judicial review. I make this finding on
the basis that:
- CanWest is not directly affected by the matter that
is the subject of the judicial review; and
- This is not an appropriate case in which to
exercise judicial discretion to grant CanWest public interest standing.
[29] As noted, the issue of standing is determinative and there is no
need to consider the other issues raised and argued before me. On the basis
that CanWest lacks standing, it follows that the Application for judicial review
is bereft of any possibility of success. The motion to
dismiss the Application for judicial review will be allowed and the Application
for judicial review will be dismissed, with costs to the Respondents.
ORDER
THIS COURT ORDERS that:
- The motion of the Respondents to dismiss the
Application for judicial review is granted;
- The Application for judicial review is dismissed;
and
- Costs are awarded to the Respondents.
“Judith A. Snider”
____________________________
Judge
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